The Law Council of Australia is concerned that the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 is proceeding through Parliament with insufficient scrutiny.
This Bill was introduced into the House of Representatives only yesterday and appears likely to be passed by the Senate without prior referral to a parliamentary committee inquiry.
Such an inquiry would provide an opportunity for all Australians to scrutinise its provisions, identify any unintended consequences and determine whether it strikes an appropriate balance. The justification for this rushed process is unclear.
"Any measures pursued to remove the citizenship of an Australian engages the key legal principles on which our democracy was founded, and therefore demand careful consideration by the Commonwealth Parliament and Australian citizens themselves. Such measures should be reserved for the most extraordinary of cases," Law Council of Australia President, Mr Luke Murphy said.
"As the High Court has observed, the entitlements conferred by citizenship, such as the right to be at liberty in this country and to return to it as a safe haven, are not just matters of private concern, but matters of public rights of fundamental importance.
"At the very least, this Bill should be referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to allow proper scrutiny – before, not after, the Bill passes. Such scrutiny would have regard to the relevant decisions handed down by the High Court that underpin the Bill, and the extensive reports and recommendations of the Independent National Security Legislation Monitor and PJCIS on citizenship cessation.
"Citizenship deprivation should only be a matter for the courts. To the extent that these measures vest decision-making powers on citizenship cessation in the judiciary as opposed to the Executive, the Bill represents a real improvement on the existing framework."
However, the Law Council has consistently held the view that if citizenship is to be removed, it must occur only where an individual has been convicted by an independent, impartial and competent court of a serious terrorism-related offence. Crucially, the definition of 'serious offence' in the Bill applies to a broad range of offences that include preparatory conduct that entails a relatively low level of harm.
"The Bill also seeks to allow for citizenship to be revoked for an individual who has been imprisoned for at least three years," Mr Murphy said. "The Law Council has long held that citizenship cessation should be available only where a person has been sentenced to six or more years of imprisonment for a serious terrorism offence.
"We are also very concerned that these laws will apply to minors aged 14 years or over. International law has a very particular emphasis on ensuring the rehabilitation of minors and we would like to see this reflected in Australian legislation."
"The Law Council is additionally concerned by amendments introduced today that would significantly expand the list of serious offences engaging citizenship deprivation powers to include less serious terrorism offences and other unrelated federal criminal offences, for example, slavery and slavery-like offences including servitude, forced labour and deceptive recruiting for labour or services."
These amendments expand the list of serious offences beyond the serious terrorism offences originally targeted by 2015 laws, which were directed towards the specific risk posed by returning dual citizens who fought for, or were involved in, terrorist activities overseas.
The Bill would provide that these deprivation powers are available in relation to a conviction that occurs after the Bill commences, however, it may apply to conduct engaged in by the person on or after 12 December 2015. If passed, these amendments would mean that persons may be subject to an application for a citizenship cessation order in circumstances where, at the time they committed the conduct, they could not be subject to citizenship deprivation. The Law Council considers that people must be able to know in advance whether their conduct might attract this kind of sanction.
Given its serious implications, expanding the scope of citizenship deprivation from counter-terrorism to general objectives of criminal law enforcement should not be taken without careful scrutiny. In sentencing a federal offender, federal law already requires a sentencing judge to ensure that a federal offender is adequately punished for their criminal offending.
"These laws should not be passed in a day," Mr Murphy said. "The Law Council calls for additional time for the Australian public to scrutinise the Bill, through a parliamentary inquiry process, occurring before the Bill is passed."
